Connecting People To Home And Community Care Act, 2020 Receives Royal Assent - Healthcare

I. Background

On July 8, 2020, Bill 175: An Act to amend and repeal various Acts respecting home care and community services (the "Act")¹ received royal assent. In introducing Bill 175, the government indicated that its provisions aimed to modernize the delivery of home and community care services in the province "by bringing an outdated system into the 21^st century".² The purpose of this bulletin is to summarize the provisions of the Act and proposed regulations that establish the new legal framework for home and community care services in Ontario.³

While the Act will ultimately⁴ repeal the legislation that currently governs the delivery of home and community care services in Ontario, namely, the Home and Community Services Act, 1994 (the "1994 Act") and regulation O. Reg. 386/99 to that Act (the "1994 Regulation" and together with the 1994 Act, the "1994 Framework"), elements of the 1994 Framework will be conserved, including through amendments to the Connecting Care Act, 2019 (the "Connecting Care Act") and the introduction of new regulations. In speaking about these new regulations, the Ministry of Health (the "Ministry") emphasized that it is "planning to maintain the core elements of the [existing] home and community care program, while introducing flexibility for Ontario Health Teams and other providers to implement integrated, effective and accountable models of care that respond to local needs".⁵

II. Status of Relevant Provisions of the Act and Regulations

While, as noted above, the Act has received royal assent, the provisions of the Act that pertain to home and community care services and: (i) amend the Connecting Care Act, the Ministry of Health and Long-Term Care Act (the "MOH Act") and the Excellent Care for All Act, 2010 ("ECFAA"); and (ii) repeal the 1994 Act, are not yet in force and will come into force on a date to be named by proclamation of the Lieutenant Governor. Accordingly, neither the amendments that are summarized below nor the repeal of the 1994 Act have taken effect.

Concurrent with its introduction of the Act earlier this year, the Ministry posted summaries of its proposed new regulations and amendments to existing regulations that would support the new home and community care program. More specifically, the Ministry posted summaries of:

a new regulation to be made under the Connecting Care Act (the "Proposed CCA Regulation Summary").⁶ The large majority of the provisions for the new home and community care program are contained in the Proposed CCA Regulation Summary;⁷
a new regulation to be made under the MOH Act (the "Proposed MOH Act Regulation Summary");⁸
a new regulation to be made under ECFAA (the "Proposed ECFAA Regulation Summary");⁹ and
consequential amendments to various other regulations.

The Ministry has indicated that while the formal consultation process in respect of the above regulation summaries closed in April, it is seeking additional feedback on these regulations from stakeholders that were unable to provide their input during the original consultation period due to COVID-19.¹⁰ It is unclear when such regulations and regulatory amendments will come into effect as the Ministry has stated that they "will continue to be evaluated in light of the COVID-19 pandemic".¹¹

III. New Legal Framework for Home and Community Care Services

i. Amendments to the Connecting Care Act & Proposed CCA Regulation Summary

Funding for Home and Community Care Services

The Act will amend the Connecting Care Act to authorize Ontario Health to provide funding to a health service provider ("HSP") or Ontario Health Team ("OHT")¹² for the purpose of the HSP or the OHT providing such funding to or on behalf of an individual to purchase home and community care services. This is a departure from the 1994 Framework, which only permits local health integration networks ("LHINs") to provide funding directly to or on behalf of patients for home and community care services.

Consistent with the 1994 Framework under which approved agencies (i.e. agencies that receive funding from LHINs for home and community care services) are required to be not-for-profit entities, amendments to the Connecting Care Act will require organizations that receive funding directly from Ontario Health for home and community care services to be not-for-profit. As with the current delivery model for home and community care services, the Ministry proposes that such not-for-profit providers will be permitted to deliver home and community care services directly or indirectly through service contracts with not-for-profit or for-profit providers.¹³

Through the Proposed CCA Regulation Summary, the Ministry also proposes that:

Ontario Health will provide funding for certain home care services "through an integrated model of care" in which such services would be delivered by an OHT or HSP. Consistent with the 1994 Framework, it would then generally be the case that OHTs and HSPs (which, as will be seen below, include the current LHINs) will in turn contract for the delivery of these home care services, such that there will be no direct funding relationship between Ontario Health and home care service providers; and
the practice under the 1994 Framework of having "community support services"¹⁴ through not-for-profit providers will continue under the new legal framework. However, the Ministry has indicated that existing contracts for community support services with for-profit organizations will be permitted to continue in force.¹⁵

Charging for Home and Community Care Services

The amendments to the Connecting Care Act that will be brought about by the Act will also preserve the prohibitions existing in the 1994 Framework against charging for home and community care services unless permitted by regulation. Through the Proposed CCA Regulation Summary, the Ministry has proposed that the current practice of permitting charges for specified community care services (being community support services as defined in the 1994 Act) be preserved in order to "maintain Ontario's publicly funded home and community care program, while recognizing that community services are provided through a combination of government funding, volunteer services, charitable donations and client co-payments".¹⁶

Eligibility for Home and Community Care Services

In the Proposed CCA Regulation Summary, the Ministry states that it is proposing that the existing eligibility criteria for home and community care services (as set out in the 1994 Framework) would continue in effect. However, through the Proposed CCA Regulation Summary, the Ministry also seeks feedback on whether to make the eligibility criteria for pharmacy and physiotherapy services more flexible. In particular, while it is currently the case that a patient must be unable to access pharmacy and physiotherapy services outside of their home due to their medical condition, the new eligibility criteria would recognize that individuals may face other barriers to obtaining these services outside of their home - such as where the closest setting to receive the applicable service is hours away from the individual's home.

Scope of Home and Community Care Services

The Act will amend the Connecting Care Act to recognize the authority of the Lieutenant Governor in Council to make regulations to, among other things, define or clarify the meaning of the term "home and community care services" (which term will not be defined in the Connecting Care Act itself). Currently, section 2(3) the 1994 Act defines "community services" to include: (i) community support services; (ii) homemaking services; (iii) personal support services; and (iv) professional services.¹⁷ Based on the foregoing definition, "community support services" currently form part of the services comprising "community services". In the Proposed CCA Regulation Summary, the Ministry seeks feedback on various proposed changes to the manner in which these services are defined. In particular, the Ministry proposes:

the introduction of an umbrella term of "home and community care services" which would be comprised of two categories of services - namely, "home care services" and "community care services";
that "home care services" would be comprised of professional services, personal support services, homemaking services (to the extent that personal support services are also provided), security checks and reassurance services where other home care services are also provided; and
that "community care services" would be comprised of personal support services, homemaking, security checks and reassurance services.¹⁸

The Ministry also proposes that:

four new services (which are currently provided by the LHINs) would be added as community care services, specifically, aphasia services, pain and symptom management, diabetes education and psychological services for persons with acquired brain injuries; and
residential accommodation services would be added as a home and community care service. This would cause funding to be available for lodging, meals, unscheduled care needs, housekeeping, linen/laundry, resident safety and security checks, and social and recreation services within a residential congregate care setting.¹⁹

LHINs

The Act will amend the Connecting Care Act to cause LHINs to be deemed HSPs where provided for and to the extent prescribed by the regulations. The Ministry has confirmed that LHINs will be: (i) designated as HSPs on an interim basis pursuant to the new regulation to be introduced under the Connecting Care Act; and (ii) be subject to certain provisions of the Connecting Care Act and regulations under that Act which relate to home and community care services and apply to other home and community care providers that are funded by Ontario Health ("Home and Community Care Provider") in order to ensure that "home and community care patients receive equitable care, regardless of who provides it."²⁰

With respect to the LHINs, the Ministry has also stated that:

they are being "will be refocused into interim and transitional organizations called Home and Community Care Support Services, to reflect their singular mandate of delivering home and community care, as well as long-term care home placement" and that it is anticipated that the non-home and community care functions of the LHINs will be transitioned to Ontario Health in the "near future";²¹
once implemented, Home and Community Care Support Services are expected to exist "for a few years" until such time as home and community care transitions into OHTs and other points of care;
to "help promote patient familiarity", Home and Community Support Services will continue to use the same regional identifiers as the LHINs; and
each of the Home and Community Care Support Service organizations will be governed by a "common set of cross-appointed board members with a streamlined leadership team".

Additional Investigative and Supervisory Powers

The Act will also amend the Connecting Care Act to introduce investigative powers specific to prescribed home and community care services that include residential accommodation at the premises. The Connecting Care Act currently authorizes Ontario Health, where it determines it to be in the best interest to do so, to appoint one or more investigators to report on, among other things, the quality of: (i) the management of; or (ii) care and treatment of persons by, an HSP or OHT. Generally speaking, the Connecting Care Act prohibits an investigator from entering a place that is used as a dwelling without the consent of the occupier. However, the expanded investigative powers introduced by the Act will permit an investigator to enter a dwelling owned or operated by a Home and Community Care Provider that includes residential accommodation of the premises if the consent of the occupier cannot be obtained after making reasonable efforts and written notice has been given to each occupier of the dwelling at least 24 hours before the entry.

The Connecting Care Act also authorizes the Minister to appoint a supervisor to prescribed HSPs and OHTs, which will include Home and Community Care Providers once the Connecting Care Act is amended by the Act. Currently, the Minister is required to provide 14 days' notice to the board (or other responsible body) of the HSP or OHT, as the case may be, prior to appointing a supervisor. The Act will amend the Connecting Care Act to provide that the foregoing requirement does not apply to Home and Community Care Providers that are funded to provide prescribed home and community care services that include residential accommodation where the Minister determines that there is an immediate threat to the health, safety or well-being of persons receiving the home and community care services at the premises owned or operated by the Home and Community Care Provider.

Complaints and Appeals Process

The Act will amend the Connecting Care Act to include a new Part that sets out the complaints and appeals process for Home and Community Care Providers. Similar to requirements under the 1994 Act, Home and Community Care Providers will be required to establish a process for reviewing complaints made by patients with respect to home and community care services in accordance with requirements established in regulation. In the Proposed CCA Regulation Summary, the Ministry indicates that the complaint topics that are outlined in the 1994 Act will remain but that the following additional items will be added:

Decisions around eligibility
Decisions related to the amount of service
Quality of service
Violation of rights under other legislation related to their care, including consent, privacy and confidentiality
Exclusion of services
Decisions related to the termination of service
Alleged violation of a person's rights (refer to the Bill of Rights section below)

The Proposed CCA Regulation Summary also states that the requirements for the handling of complaints will remain as-is (for example, the right of clients to be informed of the process to make a complaint and to be free from interference, coercion, discrimination or reprisal in respect of the complaint).

Amendments to the Connecting Care Act will maintain the right under the 1994 Act to appeal specified decisions regarding home and community care services to the Health Services Appeals and Review Board ("HSARB"). Through the Proposed CCA Regulation Summary, the Ministry proposes that the parameters for appeals will mimic the parameters under the 1994 Act, including, for example, by providing that the types of decisions that will have a right to appeal.

Service Maximums

While the 1994 Regulation establishes a maximum amount of services that can be received (subject to extraordinary circumstances being present), the Ministry proposes that there will be no service maximums under the new framework. Instead, the Ministry would develop a policy which would provide guidance on: (i) care planning; and (ii) service allocation, as a means to promote equal access to home and community care services across Ontario.²²

Service Locations

In the Proposed CCA Regulation Summary, the Ministry indicates that:

the care settings that are outlined in the 1994 Framework (e.g. a person's home, congregate care settings) would be maintained, as would the restrictions on care settings (e.g. the prohibition against providing personal support services through home care in long-term care homes as such services form part of long-term care home services);
it is proposing to add public hospitals as an eligible care setting where: (i) the patient is complex; and (ii) the home and community care services pre-dated the hospitalization and are not expected to be needed post-hospitalization; (iii) the home and community care services are not related to the reason the person is hospitalized; and (iv) the hospital and the home and community care service provider have formally addressed matters of oversight and accountability for home and community care service provided in-hospital; and
it is proposing to add "residential congregate care settings" as an eligible care setting. Such new care setting is intended to benefit patients who do not require hospitalization or the resources of a long-term care home but whose needs are too much to be cared for at home. The Proposed CCA Regulation Summary notes that further details of each congregate care model would be defined in regulation under the Connecting Care Act.

Method of Delivering Services

In the Proposed CCA Regulation Summary, the Ministry proposes that the current methods of delivering home and community care services (as outlined in the 1994 Regulation) will be maintained. This includes the delivery of services in-person, or virtually through electronic means if deemed appropriate based on the patient's needs and preferences.

Bill of Rights

The Proposed CCA Regulation Summary provides that the Ministry will include a Bill of Rights for home and community care patients in a regulation to the Connecting Care Act as did the 1994 Act. The Ministry stated that the Bill of Rights outlined in the 1994 Act would be used as a model for the new Bill of Rights, but invited feedback on updates that may be required (including, for example, updates that relate to the "equitable inclusion of all Ontarians in the delivery of home and community care services"²³).

Self-Directed Care

As noted above, whereas under the 1994 Framework, only LHINs were permitted to provide funding to individuals directly for home and community care services, on account of amendments to the Connecting Care Act, HSPs (which will include LHINs) and OHTs will also be permitted to provide funding directly to individuals for such services.

Through the Proposed CCA Regulation Summary, the Ministry is proposing to keep the existing criteria for self-directed care (as set out in the 1994 Framework and the Family-Managed Home Care²⁴ specifications), with such criteria being set forth in regulation and policy.

Care Coordination

In the Proposed CCA Regulation Summary, the Ministry proposes that HSPs providing home and community care (regardless of whether they are part of an OHT) will be required to ensure the performance of various care coordination functions (e.g. assessment of a patient's need for home and community care services; management of issues with service delivery). However, unlike under the 1994 Framework, where all care coordination functions are required to be performed by an approved agency, the Ministry is proposing that HSPs will have the right to assign care coordination functions to contracted providers, or, where there is mutual agreement, through partner organizations. The Proposed CCA Regulation Summary indicates that more detailed expectations for care coordination will be established in policy.

ii. Amendments to the MOH Act and Proposed MOH Act Regulation Summary

The Act will also amend the MOH Act to maintain the Minister of Health's:

authority to contract with Indigenous organizations to provide for home and community care services for Indigenous communities; and
right of subrogation and direct recovery in respect of costs sustained for home and community care services and long-term care services. Through the Proposed MOH Act Regulation Summary, the Ministry proposes a regulation under the MOH Act to "implement this right in alignment with the provisions of the Health Insurance Act".²⁵

iii. Amendments to ECFAA and Proposed ECFAA Regulation Summary

The Act will amend ECFAA in a manner that preserves the jurisdiction of the Patient Ombudsman over specified home and community care services. Such services will be prescribed in a regulation under the ECFAA and will align with the definition of "home and community care services" set forth in the Proposed CCA Regulation Summary.²⁶

Footnotes

1 The short title of the Act is Connecting People to Home and Community Care Act, 2020.

2 Government of Ontario, News Release, "Ontario Modernizing Delivery of Home and Community Care".

3 This bulletin is limited to addressing those provisions of the Act relating to home and community care services.

4 Additional information regarding the status of the relevant provisions of the Act is included below immediately under the heading, "Status of Relevant Provisions of the Act and Regulations".

5 Government of Ontario - Ontario's Regulatory Registry

<6 Ministry of Health - Proposed new regulation under the Connecting Care Act, 2019 (pdf).

7 The Ministry provided that, "[s]imilar to other Canadian jurisdictions, detailed parameters for the delivery of home and community care [will] be outlined in regulation and policy, rather than legislation". See supra note 2.

8 Ministry of Health - Proposed new regulation under the Connecting Care Act, 2019 (pdf).

9 Ibid.

10 The Ministry has invited stakeholders to submit any feedback on the regulations to HCCB.Modernization@ontario.ca by July 24, 2020.

11 Email exchange with the Project Implementation & Team Lead, Strategic Policy Unit, Home and Community Care Branch, Ontario Health Teams Division, Ministry of Health, dated July 15, 2020.

12 Notably, the Act amended the Connecting Care Act to replace all references to "integrated care delivery systems" with references to Ontario Health Teams.

13 Proposed CCA Regulation Summary, p. 4.

14 As defined by the 1994 Act. A further discussion regarding community support services is included below under the subheading "Scope of Home and Community Care Services".

15 Proposed CCA Regulation Summary, pp. 3-4.

16 Proposed CCA Regulations Summary, p. 4.

17 While sections 2(4)-(7) of the 1994 Act define the terms "community support services", "homemaking services", "personal support services" and "professional services", respectively.

18 The Ministry confirmed that it deliberately included personal support services, homemaking, security checks and reassurance services as both home care services and community care services.

19 Further details regarding the addition of residential congregate care settings are included under the subheading of "Service Locations" below.

20 Proposed CCA Regulation Summary, p. 8.

21 This transition has been delayed by the COVID-19 pandemic.

22 Proposed CCA Regulation Summary, p. 5.

23 Proposed CCA Regulation Summary, p. 6.

24 Family-Managed Home Care is intended to provide more control over care to eligible clients and families. Through the program, eligible clients, or their substitute decision-makers, will receive funding that they can use to purchase home care services or employ care providers.

25 Supra note 8.

26 See above under the subheading "Scope of Home and Community Care Services" for further details regarding the definition of "home and community care services".

Originally published July 23, 2020.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Canada: Connecting People To Home And Community Care Act, 2020 Receives Royal Assent Health Bulletin